Do ‘critical infrastructure’ laws threaten free speech?

John SextonPosted at 3:21 pm on August 22, 2018

The Washington Post has a story up today which was written in partnership with Inside Climate News. The story suggests new laws aimed at protecting critical infrastructure projects are a threat to the free speech of protesters who wish to oppose the construction of oil pipelines using civil disobedience tactics.

A new oil pipeline was looming in Oklahoma, and Ashley McCray wanted to be part of the resistance. She and other activists set up camp near McCurtain, one of the towns where the Diamond Pipeline was slated to slice through the landscape…

Only days after McCray and the coalition announced their plans to resist the Diamond Pipeline construction, an Oklahoma state lawmaker introduced a bill to stiffen penalties for interfering with pipeline projects and other “critical infrastructure.” The law, which the governor signed, imposed punishments of up to 10 years in prison and $100,000 in fines — and up to $1 million for any organization “found to be a conspirator.” Merely stepping onto a pipeline easement suddenly risked a year in prison.

It became a trend.

Dozens of bills and executive orders that aim to restrict high-profile protests have been introduced in at least 31 states and the federal government since November 2016. Fifteen have been enacted, according to the International Center for Not-for-Profit Law, including the critical-infrastructure pipeline bill signed in Oklahoma and similar bills in Louisiana and Iowa. Some of the laws would expand definitions of rioting and terrorism and would even increase penalties for blocking traffic.

We do have a tradition of civil disobedience in this country but that civil disobedience is, by definition, not legal. Those who engage in civil disobedience are choosing to face arrest and jail time to make a point. What the protesters here are objecting to is that the new laws have raised the cost of engaging in such protests substantially. From Truthout:

The Atchafalaya Basin is the nation’s largest river swamp and home to some of the most pristine wetlands in Louisiana, so the frontlines of the fight to stop construction of the Bayou Bridge Pipeline are only accessible by water. The sun is beginning to set when a group of Water Protectors pick me up in a small boat and bring me into the basin…

This is where the Texas-based oil company Energy Transfer Partners is building the Bayou Bridge Pipeline, a 167-mile controversy that bisects much of Louisiana and faces fierce opposition from environmentalists and Indigenous activists.

Land a boat on that pipeline easement, and you could be charged with a felony. On August 1, a new state law targeting anti-pipeline protesters went into effect in Louisiana. The law declares pipelines to be “critical infrastructure” along with water treatment plants and the power grid and makes trespassing on pipeline construction sites a serious crime. “Disrupting” a pipeline’s “operations” could land you in prison for up to 20 years. The law is clearly aimed at the Water Protectors in Louisiana, who routinely bring construction of the Bayou Bridge Pipeline to a temporary halt with colorful — and peaceful — acts of civil disobedience.

Last week, the Daily Caller wrote about one such group of protesters living in the swamp. The report noted how careful the lone protester they encountered was not to mention any group he was part of and to note that a treehouse intended to block construction was set up outside the pipeline easement:

Since construction began in early 2018, activists have been arrested for a litany of illegal actions: standing in the way of construction, locking themselves onto equipment or cement-filled barrels, outright destruction of property, and numerous other tactics. Environmental organizations involved in these activities include the Louisiana Bucket Brigade, 350 New Orleans and the L’eau Est La Vie Camp…

Babyface would not tell TheDCNF what group — if any — he belonged to, and he wouldn’t go into detail on what options his group would take to block the last bit of construction that is left. “Hopefully that day is never going to come,” he said…

“There’s a lifeline on the easement and that’s connected to a sit-in tree that is outside of the easement out here on public land. Nobody is breaking the law by being out here or sitting. But the idea is that its unsafe for them to cut any further — not only because its destructive to the environment, but because a human being’s life is in the balance,” he said.

A number of protesters against the Bayou Bridge Pipeline have been arrested in recent weeks. An attorney for three of the protesters tells the Post he is waiting to see if the district attorney brings charges under the new law. If that happens, he plans to fight the law in the courts.

It’s fair to ask where the line is between freedom of speech and eco-terrorism. But no matter where you draw it, pipeline protesters have been on both sides of that line. It’s also worth noting that even the most serious acts of vandalism and civil disobedience have mostly received a slap on the wrist. For instance, the two women who used torches to burn holes in the Dakota Access Pipeline have yet to be charged. One of the leaders of the protest camp who was charged with inciting a riot last year, had the most serious charges against him dropped as part of a plea deal announced yesterday. The one exception to this trend was Red Fawn Fallis, the protester who fired a gun during an arrest. She received more than four years in jail, though the majority of that sentence was for illegal possession of the gun by a felon.

This seems like a story that is not over yet. Maybe some of these laws go too far in restricting protest, but it’s certainly the case that some of the protesters have gone too far as well. The law probably needed to change to account for that.